NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _______________
No. 24-2926 _______________
MAURICE NELSON CLARK, Appellant
v.
THE TRUSTEES OF THE UNIVERSITY OF PENNSYLVANIA _______________
On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. No. 2:23-cv-04853) District Judge: Honorable Mark A. Kearney _______________
Submitted under Third Circuit LAR 34.1(a) December 8, 2025 _______________
Before: KRAUSE, PHIPPS, and CHUNG, Circuit Judges
(Filed: December 8, 2025) _______________
OPINION * _______________
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. KRAUSE, Circuit Judge.
Appellant Dr. Maurice Nelson Clark appeals the District Court’s grant of summary
judgment to the Trustees of the University of Pennsylvania (Penn) on his race-based
employment discrimination claim under Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e, et seq. Because the District Court properly concluded that Clark failed
to establish a prima facie case of discrimination, we will affirm.
I. DISCUSSION 1
Clark, a clinical pharmacist, alleges that Penn discriminated against him based on
his race by issuing him a first written warning and limiting his work hours as discipline
for “[s]leeping on the job,” without imposing the same discipline on non-Black clinical
pharmacists who engaged in different misconduct. App. 206-07. Proof of an employer’s
discriminatory motive is critical to a successful disparate treatment claim. Qin v. Vertex,
Inc., 100 F.4th 458, 472 (3d Cir. 2024). Where, as here, direct evidence of
discriminatory motive is lacking, we apply the McDonnell Douglas burden-shifting
framework. Id. at 472-73 (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-
04 (1973)).
Under that framework, Clark must “establish a prima facie case of discrimination
by showing that: (1) []he is a member of a protected class; (2) []he was qualified for the
position []he sought to attain or retain; (3) []he suffered an adverse employment action;
1 The District Court had jurisdiction under 28 U.S.C. § 1331, and this Court has jurisdiction under 28 U.S.C. § 1291. We conduct plenary review of a district court’s summary judgment ruling. Barna v. Bd. of Sch. Dirs. of the Panther Valley Sch. Dist., 877 F.3d 136, 141 (3d Cir. 2017). 2 and (4) the action occurred under circumstances that could give rise to an inference of
intentional discrimination.” Makky v. Chertoff, 541 F.3d 205, 214 (3d Cir. 2008). If
Clark establishes a prima facie case, the burden shifts to Penn to “articulate a legitimate,
non-discriminatory reason for the adverse employment action,” and if Penn does so, the
burden shifts back to Clark “to show that [Penn’s] proffered reason is merely pretext for
intentional discrimination.” Id.
Below, we explain that (A) Clark failed to establish a prima facie case of
race-based employment discrimination, and (B) even if Clark had made out a prima facie
case, he could not prove that Penn’s proffered reason for imposing discipline was
pretextual.
A. Clark Failed to Establish a Prima Facie Case of Employment Discrimination.
Clark contends that he sufficiently proved intentional discrimination with the
circumstantial evidence that three non-Black clinical pharmacists who engaged in
different misconduct (the Pharmacists) were treated more favorably by Penn. 2
Comparators “need not be identical but must be similarly situated in ‘all material
respects.’” Qin, 100 F.4th at 474 (quoting In re Trib. Media Co., 902 F.3d 384, 403 (3d
Cir. 2018)). Relevant considerations include whether the employees had the same job
title, dealt with the same supervisor, were subject to the same standards, shared similar
2 Clark argued before the District Court that a pharmacy intern and a pharmacy technician were also appropriate comparators, but the District Court properly rejected that argument because those employees had different job titles and, on appeal, Clark only relies on those individuals as “probative evidence” of disparate treatment “when placed together with” the Pharmacists, not as independent comparators. Op. Br. 34. 3 job responsibilities, id., and “engaged in the same conduct,” In re Trib. Media, 902 F.3d
at 403 (citation modified) (rejecting a comparator because the plaintiff did not show that
the comparator’s conduct “involved the same degree of yelling, profanity, and
disruption”); see also Mandel v. M & Q Packaging Corp., 706 F.3d 157, 170 (3d Cir.
2013) (noting that evidence of an employee “who engaged in the same conduct but was
treated more favorably, may give rise to an inference of unlawful discrimination”).
Clark emphasizes that the Pharmacists share his job title and, like Clark, engaged
in conduct that would typically result in termination of employment under Penn’s
Performance Improvement and Progressive Steps (PIPS) policy—i.e., conduct of
“comparable seriousness.” Op. Br. 22. But the Pharmacists are not appropriate
comparators because they engaged in different misconduct implicating different safety
risks than sleeping on the job. Clark does not argue otherwise and instead relies on the
similarity in seriousness under the discretionary PIPS policy to meet his burden.
However, an employer’s adoption of a progressive discipline policy does not render each
employee who is eligible for the same sanction “similarly situated” for purposes of Title
VII, particularly when the policy includes a “specific statement that progressive
discipline is optional.” Iweha v. Kansas, 121 F.4th 1208, 1226 (10th Cir. 2024). Cf. id.
at 1226-27 (rejecting a Black pharmacist’s argument that her termination was racially
motivated because the employer “fail[ed] to follow a progressive approach to discipline
as mandated by their own written policy” on the ground that the argument was
“untenable” given that “progressive discipline was discretionary”); see also Goldblum v.
Univ. of Cincinnati, 62 F.4th 244, 255-56 (6th Cir. 2023) (requiring proof that employees
4 were similarly situated before assessing how the employer applied its progressive
disciplinary policy); Fane v. Locke Reynolds, LLP, 480 F.3d 534, 541 (7th Cir. 2007)
(explaining that when the progressive disciplinary procedure was discretionary, “no
reasonable jury could conclude that the [employer’s] failure to follow progressive
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _______________
No. 24-2926 _______________
MAURICE NELSON CLARK, Appellant
v.
THE TRUSTEES OF THE UNIVERSITY OF PENNSYLVANIA _______________
On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. No. 2:23-cv-04853) District Judge: Honorable Mark A. Kearney _______________
Submitted under Third Circuit LAR 34.1(a) December 8, 2025 _______________
Before: KRAUSE, PHIPPS, and CHUNG, Circuit Judges
(Filed: December 8, 2025) _______________
OPINION * _______________
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. KRAUSE, Circuit Judge.
Appellant Dr. Maurice Nelson Clark appeals the District Court’s grant of summary
judgment to the Trustees of the University of Pennsylvania (Penn) on his race-based
employment discrimination claim under Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e, et seq. Because the District Court properly concluded that Clark failed
to establish a prima facie case of discrimination, we will affirm.
I. DISCUSSION 1
Clark, a clinical pharmacist, alleges that Penn discriminated against him based on
his race by issuing him a first written warning and limiting his work hours as discipline
for “[s]leeping on the job,” without imposing the same discipline on non-Black clinical
pharmacists who engaged in different misconduct. App. 206-07. Proof of an employer’s
discriminatory motive is critical to a successful disparate treatment claim. Qin v. Vertex,
Inc., 100 F.4th 458, 472 (3d Cir. 2024). Where, as here, direct evidence of
discriminatory motive is lacking, we apply the McDonnell Douglas burden-shifting
framework. Id. at 472-73 (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-
04 (1973)).
Under that framework, Clark must “establish a prima facie case of discrimination
by showing that: (1) []he is a member of a protected class; (2) []he was qualified for the
position []he sought to attain or retain; (3) []he suffered an adverse employment action;
1 The District Court had jurisdiction under 28 U.S.C. § 1331, and this Court has jurisdiction under 28 U.S.C. § 1291. We conduct plenary review of a district court’s summary judgment ruling. Barna v. Bd. of Sch. Dirs. of the Panther Valley Sch. Dist., 877 F.3d 136, 141 (3d Cir. 2017). 2 and (4) the action occurred under circumstances that could give rise to an inference of
intentional discrimination.” Makky v. Chertoff, 541 F.3d 205, 214 (3d Cir. 2008). If
Clark establishes a prima facie case, the burden shifts to Penn to “articulate a legitimate,
non-discriminatory reason for the adverse employment action,” and if Penn does so, the
burden shifts back to Clark “to show that [Penn’s] proffered reason is merely pretext for
intentional discrimination.” Id.
Below, we explain that (A) Clark failed to establish a prima facie case of
race-based employment discrimination, and (B) even if Clark had made out a prima facie
case, he could not prove that Penn’s proffered reason for imposing discipline was
pretextual.
A. Clark Failed to Establish a Prima Facie Case of Employment Discrimination.
Clark contends that he sufficiently proved intentional discrimination with the
circumstantial evidence that three non-Black clinical pharmacists who engaged in
different misconduct (the Pharmacists) were treated more favorably by Penn. 2
Comparators “need not be identical but must be similarly situated in ‘all material
respects.’” Qin, 100 F.4th at 474 (quoting In re Trib. Media Co., 902 F.3d 384, 403 (3d
Cir. 2018)). Relevant considerations include whether the employees had the same job
title, dealt with the same supervisor, were subject to the same standards, shared similar
2 Clark argued before the District Court that a pharmacy intern and a pharmacy technician were also appropriate comparators, but the District Court properly rejected that argument because those employees had different job titles and, on appeal, Clark only relies on those individuals as “probative evidence” of disparate treatment “when placed together with” the Pharmacists, not as independent comparators. Op. Br. 34. 3 job responsibilities, id., and “engaged in the same conduct,” In re Trib. Media, 902 F.3d
at 403 (citation modified) (rejecting a comparator because the plaintiff did not show that
the comparator’s conduct “involved the same degree of yelling, profanity, and
disruption”); see also Mandel v. M & Q Packaging Corp., 706 F.3d 157, 170 (3d Cir.
2013) (noting that evidence of an employee “who engaged in the same conduct but was
treated more favorably, may give rise to an inference of unlawful discrimination”).
Clark emphasizes that the Pharmacists share his job title and, like Clark, engaged
in conduct that would typically result in termination of employment under Penn’s
Performance Improvement and Progressive Steps (PIPS) policy—i.e., conduct of
“comparable seriousness.” Op. Br. 22. But the Pharmacists are not appropriate
comparators because they engaged in different misconduct implicating different safety
risks than sleeping on the job. Clark does not argue otherwise and instead relies on the
similarity in seriousness under the discretionary PIPS policy to meet his burden.
However, an employer’s adoption of a progressive discipline policy does not render each
employee who is eligible for the same sanction “similarly situated” for purposes of Title
VII, particularly when the policy includes a “specific statement that progressive
discipline is optional.” Iweha v. Kansas, 121 F.4th 1208, 1226 (10th Cir. 2024). Cf. id.
at 1226-27 (rejecting a Black pharmacist’s argument that her termination was racially
motivated because the employer “fail[ed] to follow a progressive approach to discipline
as mandated by their own written policy” on the ground that the argument was
“untenable” given that “progressive discipline was discretionary”); see also Goldblum v.
Univ. of Cincinnati, 62 F.4th 244, 255-56 (6th Cir. 2023) (requiring proof that employees
4 were similarly situated before assessing how the employer applied its progressive
disciplinary policy); Fane v. Locke Reynolds, LLP, 480 F.3d 534, 541 (7th Cir. 2007)
(explaining that when the progressive disciplinary procedure was discretionary, “no
reasonable jury could conclude that the [employer’s] failure to follow progressive
discipline procedures suggested discrimination.”); see also Doe v. C.A.R.S. Prot. Plus,
Inc., 527 F.3d 358, 370 (3d Cir. 2008) (discussing how “the prima facie case and pretext
inquiries often overlap” and are supported by the same evidence)..
Because the PIPS policy includes a specific statement that Penn “at all times
retains the right” to deviate from the policy’s stepwise discipline, App. 160, and because
the Pharmacists engaged in different misconduct, we reject Clark’s attempt to define
similarly situated individuals as all clinical pharmacists who engaged in misconduct that
would typically result in termination of employment under the PIPS policy. Accordingly,
Clark cannot meet his burden to prove a prima facie case of race-based employment
discrimination with this comparator evidence.
B. Clark Cannot Show That Penn’s Articulated Reason for Imposing Discipline Was Pretextual.
Even if Clark could make out a prima facie case of employment discrimination, he
cannot show that Penn’s legitimate, nondiscriminatory reason for disciplining him—i.e.,
that he committed a terminable offense under the PIPS policy by sleeping on the job—
was pretext for intentional race-based discrimination. See Qin, 100 F.4th at 474-75. To
establish pretext, Clark must provide evidence “from which a factfinder could reasonably
either (1) disbelieve the employer’s articulated legitimate reasons; or (2) believe that an
5 invidious discriminatory reason was more likely than not a motivating or determinative
cause of the employer’s action.” Id. (quoting Fuentes v. Perskie, 32 F.3d 759, 764 (3d
Cir. 1994)).
Clark first attempts to discredit Penn’s articulated reason for imposing discipline
by claiming that Penn’s reliance on a single email report of Clark sleeping on the job,
without further investigation, cannot support an “honest, good faith belief” that he
engaged in that misconduct. Op. Br. 42. But “the factual dispute at issue is whether
discriminatory animus motivated the employer, not whether the employer is wise,
shrewd, prudent, or competent,” so the argument that Penn’s “decision was wrong or
mistaken” is immaterial. Fuentes, 32 F.3d at 765. Clark then points to comparator
evidence to suggest that race-based discrimination motivated his discipline. But we have
already held that the Pharmacists are not appropriate comparators and do not create an
inference of discrimination, so any different treatment of these differently situated
individuals cannot establish pretext. See C.A.R.S., 527 F.3d at 370.
II. CONCLUSION
For the foregoing reasons, we will affirm the District Court’s judgment.